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SXSW: Three standards for successfully claiming fair use in filmmaking

By on March 15, 2016

Professionals from the film industry filled the room to get tips on avoiding copyright infringement from the “legal Obi Wan Kenobi” as part of the South by Southwest Film session “FairUse-Docs & Fiction Films-Everybody Is Welcome!”

Fair use is an exception that allows artists to legally reproduce or use copyrighted material under certain conditions without permission from and often without compensation to the copyright holder.

Presenter Michael Donaldson—a founding partner in Donaldson & Callif in Beverly Hills who has represented filmmakers from Oliver Stone to Richard Linklater—explained that to understand fair use, it is essential to know the history of copyright. Originally, copyright was all about maintaining the power of the monarchy and the rich but was transformed with the founding of America, which wanted copyright laws in the Constitution.

“The reason we have copyright is not for big corporations to make money off a little mouse who is 70 years old,” Donaldson said. “It’s to encourage you to make works of art.”

Donaldson laid out three standards that need to be satisfied for a fair use claim to likely remain in the safe zone:

Does the copyrighted asset illustrate or support a point that the creator is trying to make in the new work?

Does the creator of the new work use only as much of the asset as is reasonably appropriate to illustrate or support the point being made?

Is the connection between the point being made and the asset being used to support the point clear to the average viewer?

Donaldson then showed movie clips and discussed a few of his past cases to give real life examples of how attempts to claim fair use can succeed.

A documentary filmmaker wanted to use an audio clip of part of John Lennon’s song Imagine to illustrate a character’s statement that the advances of science would make religion less important. After the character shares this sentiment, the documentary narrator then says, “But he’s just taking words from John Lennon’s songbook,” at which point the song would play:

Imagine there’s no countries
It isn’t hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace …

Donaldson’s client had been told by several big law firms that Yoko Ono would never allow usage of the clip. But Donaldson thought that the first two standards were easily met and as long as they could satisfy the third standard, all would be OK. So they placed the song clip much closer in time to the character’s statement and also put the lyrics on the screen “to make it crystal clear.” Ono expectedly sued, Donaldson said, but the court had no problem seeing the connection and decided in their favor (and hit Lennon’s widow with almost $300,000 in attorneys’ fees).

Another documentary titled Room 237 ran into some similar issues. Described as “a subjective documentary that explores the numerous theories about the hidden meanings within Stanley Kubrick’s film The Shining,” Room 237 angered the Kubrick estate because one third of it consisted of clips from Kubrick’s 1980 film. But because the clips appeared at the same time as voice-overs providing commentary and analysis of details of the film, the court found it to be fair use.

For non-documentary fictional works, Donaldson said, the same three standards apply. The makers of the 2014 feature film Jersey Boys wanted to weave in a clip of the group’s first appearance on the Ed Sullivan Show with the fictional acting scenes, but they couldn’t obtain permission. So they went ahead and used it—and got sued. But they won their case because the court found that this moment in the band’s career was so pivotal that the filmmakers could not leave it out.

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